The criminalisation of homosexuality: a malign legacy of empire

Last week the Indian Supreme Court agreed to reconsider an earlier ruling which recriminalized gay sex in India. Homosexuality was decriminalised in India in 2009 when a lower court ruled that Section 377 of the Indian penal code which penalises gay sex as an ‘unnatural offence’ punishable by up to ten years in prison, was unconstitutional. The judgement was widely seen as a significant step towards equality in India. However, in December 2013, the country re-enacted section 377 when the Supreme Court ruled that it was up to Parliament, not the courts, to rule on such issues. The judgement was widely condemned by human rights activists in India and around the world. Only days after the re-introduction of the ban, the UN Secretary General, Ban Ki-moon, took the opportunity of a speech in India, to declare that he was ‘proud to stand for the equality of all people including those who are lesbian, gay, bisexual and transgender’ and that ‘criminalizing consensual, adult same-sex relationships violate basic rights to privacy and to freedom from discrimination.’ However, the conservative-dominated Indian parliament has been reluctant to consider the issue, and the Supreme Court’s decision this week to revisit it’s earlier ruling as ‘a matter of constitutional importance’ is perhaps the best opportunity to restore the rights of same-sex couples in India.

The legal battle over India’s gay sex laws highlights a significant, but often forgotten, legacy of British imperial rule, which continues to have an impact around the globe. Section 377 of the Indian Penal Code is a legacy of British colonial rule. The criminalisation of homosexuality was introduced into India by the British in 1860 and spread quickly throughout the Empire. While there is evidence that same-sex relationships were widely accepted in pre-colonial Africa and Asia, the criminalisation of homosexuality reflected a particularly European morality based on Christian traditions which viewed same-sex relationships as unnatural. The spread of these values throughout the Empire often went hand-in-hand with attempts to spread the gospel of Christianity. (Incidentally, the promotion of heteronormative behaviour in the colonies is also widely credited with giving the world a term for the missionary position, although the origins of this are not entirely clear.)

Decolonisation predated the decriminalisation of homosexuality in the UK with the result that when Britain left the Empire in addition to railways and modern drainage it also left behind a framework for the legal repression on homosexuality. Scholars have long asserted that the criminalisation of homosexuality was a malign legacy of British colonial rule. For example, in research reported in The Washington Post, Enze Han and Joseph O’Mahoney found that laws criminalising homosexuality are much more prevalent in former British colonies:

We investigated whether and why there is a variation in laws regulating and punishing homosexual conduct around the world. Looking at a variety of data on 185 countries, we found that former British colonies were much more likely to have laws that criminalise homosexual conduct than former colonies of other European powers, or than other states in general. For example, 57 per cent of states with such a law have a British colonial origin. Almost 70 per cent of states with a British colonial origin continue to criminalise homosexual conduct.

Ironically, apologists for Empire often point to repressive policies in the former colonies as evidence of the kind of thing that happened when the benign hand of British rule was lifted. At the same time, as Han and O’Mahoney point out, those regimes which have sought to recriminalize it, often claim that tolerance of homosexuality is an attempt to impose ‘Western’ values on the developed world, or little more than a form to neo-colonialism. Neither of these are correct. Clearly, homosexuality is no more peculiarly western than are teeth and toenails. While the passage of laws to criminalise homosexuality in many cases clearly does have its roots in colonial rule. It could be argued that many years after independence, former colonial powers can hardly be held responsible for the re-criminalisation of homosexuality in a number of their former colonies. However, it is important to remember that the legacy of empire was not conducive to equal rights in many forms and the laws which are now being re-enacted have their origins in British colonial rule.